Citation NR: 9605639
Decision Date: 03/05/96 Archive Date: 03/16/96
DOCKET NO. 92-00 633 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for bladder and kidney
disabilities on a secondary basis.
REPRESENTATION
Appellant represented by: John D. Rutland, Attorney at
Law
WITNESSES AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John J. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1943 to February
1946 and from May 1948 to April 1952.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO). In
July 1993, the Board informed the veteran and his previous
representative, the American Legion, that we would rely on
medical evidence which was obtained subsequent to the
issuance of the most recent supplemental statement of the
case. The Board supplied the veteran a copy of this medical
evidence in order to meet the mandates of the United States
Court of Veterans Appeals (Court) in Thurber v. Brown, 5
Vet.App. 119 (1993). In August 1993, the RO was notified
that the veteran had changed his representative to John D.
Rutland. Since July 1993, the veteran has testified in
February 1994 before a hearing officer at the RO and raised
additional issues not before the Board at this time. In
addition to those issues raised and adjudicated by the RO,
the veteran also appears to have raised the issue of
entitlement to service connection for a nervous disorder on a
secondary basis. This issue does not appear to have been
adjudicated by the RO. The RO should take appropriate
action.
REMAND
The veteran contends that his service-connected prostatitis
has caused infections which have damaged his bladder and
kidneys. He argues that his service-connected condition has
caused a series of disorders.
As the Court has stated, a lay party is not competent to
provide probative evidence as to matters requiring expertise
derived from specialized medical knowledge, skill, expertise,
training, or education. Espiritu v. Derwinski,
2 Vet.App. 492, 494, 495 (1992). The record, however,
contains a June 1992 report from Rudolph Acosta, Jr., M.D.,
who stated that it “appears that his prostate problem is
giving him significant bladder and voiding dysfunction with
worsening episodes of voiding dysfunction every 3-4 month.”
When a disability is not initially manifested during service
or within an applicable presumptive period, "direct" service
connection may nevertheless be established by evidence
demonstrating the disability was in fact incurred or
aggravated during the veteran's service. See 38 U.S.C.A.
§ 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1995); Cosman v.
Principi, 3 Vet.App. 503 (1992); Godfrey v. Derwinski,
2 Vet.App. 352, 356 (1992); Douglas v. Derwinski,
2 Vet.App. 103, 108-09 (1992).
Further, service connection may also be established where
there is a chronic disability which is proximately due to or
the result of another service connected disability. 38
C.F.R. § 3.310(a) (1995).
The Board must note that at his hearing before the RO in
December 1990, the veteran testified that he had been told by
different doctors that his prostate has caused his water
bladder problem. These doctors include a Dr. Cross, Dr.
Butt, Dr. Renay, and Dr. Gray. Some, though not all, of the
medical records of these physicians have been associated with
the claims folder. A medical opinion from any of these
physicians that the veteran’s service-connected disability
has caused his current bladder problem would be important to
this claim. However, the veteran’s testimony relating to
what he was told by these physicians is not sufficient. See
Robinette v. Brown, 8 Vet.App. 69 (1995)
VA has a duty to assist a veteran in the development of facts
pertinent to well-grounded claims. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1995). "Full compliance
with the [statutory duty to assist] also includes VA
assistance in obtaining relevant records from private
physicians when [the veteran] has provided concrete data as
to time, place, and identity." Olson v. Principi,
3 Vet.App. 480, 483 (1992). (Emphasis added). The Court has
held that the duty to assist includes the duty to obtain
thorough contemporaneous VA examinations, including
examinations by specialists when indicated and the duty to
obtain pertinent records. Counts v. Brown, 6 Vet.App. 473
(1994); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Greene v.
Derwinski, 1 Vet.App. 121 (1991).
Where the record before the Board is inadequate to render a
fully informed decision, a REMAND to the RO is required in
order to fulfill the statutory duty to assist. Ascherl v.
Brown, 4 Vet.App. 371, 377 (1993).
In view of the state of the record, further development, as
specified below, is required. Accordingly, the case is
REMANDED to the RO for the following actions:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers who may possess
additional records pertinent to his
claim. This should include, but is not
limited to, the full names, addresses,
and dates of treatment of the following
physicians: Dr. Cross, Dr. Butt, Dr.
Renay, and Dr. Gray. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of those
treatment records identified by the
veteran which have not been previously
secured, including recent VA treatment
records.
2. Then, the RO should arrange for a VA
examination by a urologist who has not
examined the veteran in the past, if
available, to determine the nature,
extent and etiology of any bladder or
liver dysfunction found to be present.
The purpose of this evaluation is to
determine if the veteran currently has
bladder and kidney disabilities secondary
to his service-connected prostatitis.
All indicated studies should be performed
and the report should be typed. The
rationale for any opinion expressed
should be fully explained. The claims
folder should be made available to the
examiner in conjunction with the
examination of the veteran. It is
requested that following the examination
and a review of the record, the examiner
should provide responses as to the
following questions:
(a) Does the veteran suffer from a
bladder or kidney disability?
(b) What is the degree of medical
probability that any bladder or kidney
disability found is proximally related to
the service-connected prostatitis?
3. The RO should review the examination
report and determine whether the findings
comply with the requirements of paragraph
(2) above. If not, the report should be
returned to the examining facility to
correct any deficiencies. Thereafter,
the RO should readjudicate the veteran's
claim on a de novo basis.
If the benefit sought on appeal is not granted to the
veteran's satisfaction, he and his representative should be
provided a supplemental statement of the case, and they
should be afforded an opportunity to respond. Thereafter,
the case should be returned to the Board for further
appellate consideration, if otherwise in order. By this
action the Board intimates no opinion, legal or factual as
to the ultimate disposition warranted.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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